Citation Nr: 9805106
Decision Date: 02/20/98 Archive Date: 03/02/98
DOCKET NO. 96-00 367 ) DATE
)
)
On appeal from the Department of Veterans Affairs (VA)
Regional Office (RO) in Columbia, South Carolina
THE ISSUE
Entitlement to service connection for an undiagnosed illness
manifested by dizziness, weakness, fatigue, nausea, headaches
and pain in multiple joints.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
John M. Clarkson, III, Associate Counsel
INTRODUCTION
The veteran had active service from June 1982 to September
1994, including service in Southwest Asia from January to May
1991 and from June to September 1991.
REMAND
The appellant contends, in effect, that, following exposure
to oil well fires in Southwest Asia during the Persian Gulf
War, he has an undiagnosed illness manifested by dizziness,
weakness, fatigue, nausea, headaches and pain in multiple
joints. The Board of Veterans’ Appeals (Board) notes that
service medical records dating prior to March 1989 and the
veteran’s service entrance and separation examination reports
are not currently in the claims folder.
Additionally, a September 1997 rating action indicates that
the veteran’s claim has been most recently denied due to his
failure to report for a scheduled VA medical examination.
The claims folder contains letters from the RO to the veteran
dated in September and October 1997. These letters were
returned to the RO undelivered and the October 1997 letter
contains a U.S. Postal Service notification that a mail
forwarding order has expired. The inference is that the
veteran resides at a new address which is known, at least by
the U.S. Postal Service.
The most recent correspondence from the RO to the veteran is
a letter dated in November 1997 and sent to Spartanburg,
South Carolina. It does not appear that the previously
scheduled VA medical examination has been rescheduled or that
the veteran has been sent notice, to his current address, of
the time and place of any rescheduled VA examination.
VA has a duty to assist the veteran in the development of
facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West
1991); 38 C.F.R. § 3.103(a) (1997). The U.S. Court of
Veterans Appeals (Court) has held that the duty to assist the
veteran in obtaining and developing available facts and
evidence to support his claim includes obtaining medical
records to which the veteran has referred and obtaining
adequate VA examinations; the Court has also stated that the
Board must make a determination as to the adequacy of the
record. Littke v. Derwinski, 1 Vet. App. 90 (1990).
Fulfillment of the statutory duty to assist includes the
conduct of a thorough and contemporaneous medical
examination, one which takes into account the records of
prior medical treatment, so that the evaluation of the
claimed disability will be a fully informed one. Green v.
Derwinski, 1 Vet. App. 121 (1991). In cases in which the
service medical records are unavailable through no fault of
the claimant, there is a heightened obligation to assist the
claimant in the development of his case. O’Hare v.
Derwinski, 1 Vet. App. 365 (1991). The heightened duty to
assist the veteran in developing facts pertinent to his claim
under the provisions of 38 U.S.C.A. § 5107(a) in a case in
which service medical records are presumed destroyed includes
the obligation to search for alternative medical records.
Moore v. Derwinski, 1 Vet. App. 401 (1991).
The VA Adjudication Procedure Manual provides that alternate
documents may substitute for service medical records in
claims relating to service connection for a disability. A
non-exhaustive list of documents which may be substituted for
service medical records in this case includes: statements
from service medical personnel, “buddy” certificates or
affidavits, employment physical examinations, medical
evidence from hospitals, clinics and private physicians by
which or by whom a veteran may have been treated, especially
soon after service, pharmacy prescription records, and
insurance examinations. VA Adjudication Procedure Manual,
M21-1, Part III, paragraph 4.25(c) and 4.29. At a hearing in
May 1996, the veteran testified that he had copies of some of
his service medical records, dating from 1989 to 1994.
However, it does not appear that he has been requested to
provide copies of any service medical records he may have in
his possession. The veteran also testified that he was
treated at Eisenhower Medical Center at Fort Gordon, Georgia,
but it does not appear that an attempt has been made to
obtain records of any treatment of the veteran at Fort Gordon
or at other military medical facilities.
Pursuant to 38 C.F.R. § 3.317, as amended by 62 Fed.
Reg. 23138-23139 (1997), a veteran shall receive compensation
from VA where he exhibits objective indications of a chronic
disability resulting from an illness or combination of
illnesses manifested by one or more signs or symptoms
provided that the disability became manifest during military
service in the Southwest Asia theater of operations or became
manifest to a compensable degree through December 31, 2001,
and where the disability in question cannot be attributed to
any known clinical diagnosis. Disabilities existing for six
months or more are considered chronic.
The enabling legislation for this regulation is 38 U.S.C.A.
§ 1117. The legislative history of this provision
demonstrates an intent on the part of Congress to provide
compensation for Persian Gulf War veterans who suffer from
signs and symptoms of undiagnosed illnesses, and who may have
acquired these symptoms as a result of exposure to the
“complex biological, chemical, physical and psychological
environment of the Southwest Asia theater of operations.”
The history notes that, in addition to exposure to external
environmental hazards such as fumes and smoke from military
operations, oil well fires, and the possible exposure to
agents of chemical and biological warfare, members of the
Armed Forces were exposed to investigational drugs and
vaccines, and were also given multiple immunizations. It is
clear that the aforesaid oil well fires were viewed as part
of the “complex environment” of the Southwest Asia theater.
The rating actions of record do not reflect that the RO has
considered the veteran’s claim in light of 38 C.F.R. § 3.317.
Where a law or regulation changes after a claim has been
filed or reopened, but before the administrative or judicial
appeal process has been concluded, the version most favorable
to the veteran will apply. Karnas v. Derwinski, 1 Vet. App.
308, 313 (1991).
Accordingly, this case is REMANDED for the following:
1. The RO should ascertain the veteran’s
address. Since he receives compensation,
his address should be available from VA
sources. The RO should ask the veteran
to provide copies of all service medical
records in his possession and to identify
all military medical facilities where he
received treatment for the disabilities
at issue. The RO should contact the
service department to obtain medical
records of any treatment provided to the
veteran at Fort Gordon, Georgia or at any
other military medical facility indicated
by the veteran.
2. The RO should also ask the veteran to
furnish the names and addresses of all
health care providers who have treated
him for any of his disabilities at issue
since January 1995, then obtain copies of
complete clinical records of all such
treatment.
3. The RO should advise the veteran that
he may submit alternate evidence to
support his claim that an undiagnosed
illness manifested by dizziness,
weakness, fatigue, nausea, headaches and
pain in multiple joints began during
service and/or increased in severity
during service in Southwest Asia.
4. After all this development is
completed, the veteran should be afforded
a VA general medical examination and any
special medical examinations deemed
appropriate to determine, to the extent
possible, whether the veteran’s medical
complaints have been clinically confirmed
and whether it is at least as likely as
not that said complaints are related to
an undiagnosed, chronic illness which had
its onset during the veteran’s
participation in the Persian Gulf War.
All indicated tests should be performed.
The clinical findings and reasoning which
form the basis of the opinion(s) should
be clearly set forth. The claims folder
must be made available to the examiner(s)
for review of the veteran’s medical
history.
5. The RO must then review the veteran’s
claim. If it remains denied, the veteran
should be furnished an appropriate
supplemental statement of the case and
given an opportunity to respond.
Thereafter, the case should be returned to the Board for
further appellate consideration, if appropriate.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
GEORGE R. SENYK
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).
- 2 -